M 116-2012

Requesting Entity: Good Governance Books

Issues Concern: Exclusive Distributorship

Details
Whether the immediate resort to Direct Contracting in the procurement of
books authored by a particular author is justified by the fact that they are
published and distributed by an exclusive distributor.
[T]he Procuring Entity must justify the necessity for an item that may only be
procured through Direct Contracting, and it must be able to prove that there is no
suitable substitute in the market that can be obtained at more advantageous terms. It
is only after the BAC has conducted its survey and determined that one of the
conditions under Section 50 of RA 9184 is present that proper recommendation to
the HOPE for the use of Direct Contracting may be made.
Based on the foregoing, the fact alone that Good Governance Books is the publisher
and exclusive distributor of all the books authored by a particular author does not
sanction the immediate resort to procurement through Direct Contracting, in lieu of
Competitive Bidding. Under the rules, the PE must first justify the necessity for
purchasing the copyrighted books, and must be able to prove that there is no
suitable substitute in the market that can be obtained at more advantageous terms,
before the PE may decide to procure through Direct Contracting.
2012-09-05

NPM 111-2012
Requesting Entity: Department of Health - Food and Drug Administration (FDA)
Issues Concern: Chief Administrative Officer as Regular Member of the Bids and
Awards Committee (BAC)

Details
Whether the position of a Chief Administrative Officer who supervises the
accounting, budget and finance sections is covered by the prohibition in
Commission on Audit (COA) Circular No. 2003-004, prohibiting the Chief
Accountant and personnel of accounting units under her to be regular
members of the BAC.
[T]he Chief Administrative Officer is not a personnel under the Chief Accountant and

her duties and responsibilities do not cover payment functions, i.e., she does not
certify as to the availability of funds and approve vouchers in payment of
procurements made by the agency.
[T]he Chief Administrative Officer of FDA directly supervises the operations of the
budget, finance and accounting Sections of the Finance Department and evaluates
the performance of the personnel thereof. Clearly, her position is different from the
Chief Accountant or Accounting Unit personnel under her, and is not engaged in any
payment function prohibited under the rules. Accordingly, x x x the Chief
Administrative Officer of FDA may be designated as a regular member of the BAC.